TRAN VAN ANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 325/2023

[2023] HKCFI 1377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 325 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be dismissed for want of subject matter.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of a decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 15 December 2022 (the “Decision”).  The Applicant did not ask for an oral hearing.  Having regard to the nature of the application, the evidence, the issues raised, and all the circumstances, the Court considered pursuant to Order 53 Rule 3(3) of the Rules of High Court (Cap 4A) that this application may be justly determined on paper without a hearing.

2.  Enquires with the secretariat of the Board revealed that no such Decision had been made by the Board in respect of the Applicant.  What happened was that on 9 August 2022 the Applicant filed a Notice of Appeal (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 July 2022 refusing his application for non-refoulement protection (the “Notice”); and then on 8 December 2022 before his appeal was determined he filed a notice to withdraw the said NOA (the “withdrawal notice”).  Upon receipt of the withdrawal notice, the secretariat advised him by letter dated 15 December 2022 in accordance with the provisions in Section 37ZT of the Immigration Ordinance that his NOA having been withdrawn, no further action will be taken by the Board in respect of his appeal; that the decision of the Director in the Notice remains; and that his non-refoulement claim is finally determined.  The Board never made any Decision in respect of the Applicant’s appeal.

3.  Section 37ZT of the Immigration Ordinance provides as follows:

(1)    A person who has filed a notice of appeal under section 37ZS (or section 37ZT if late filing is allowed) may, at any time before the Appeal Board determines the appeal, withdraw the appeal by filing a written notice with the Board.

(2)    An appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Appeal Board and no further notice of appeal may be filed in relation to the decision.

4.  The Applicant filed the withdrawal notice dated 5 December 2022 confirming that he withdrew his appeal out of his own free will; that he fully understood the consequences of his withdrawing the appeal, including that he brought the appeal to an end even though the merits of which have not been determined; that no further action shall be taken by the Board in relation to the appeal; and that the decision of the Director which he had appealed/petitioned against shall remain in force.  As his decision to withdraw was validly made with knowledge of the consequence, his appeal was withdrawn in accordance with section 37ZT.  There was no appeal before the Board on which the Board could make or could have made any decision.  The decision of the Director in his Notice remains in force and is final.  As no decision was made by the Board, there is no subject matter for judicial review.  Accordingly, the Applicant’s leave application is dismissed for want of subject matter. 

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1